Repeating the Unanchored Mistake: How Act 1168 Missed the Opportunity to Fix Ghana’s Apex Security Architecture

When Akua Serwaa Ampong published her incisive legal analysis, "An Unanchored Institution: Assessing the Constitutionality of the National Security Council Secretariat of Ghana" in January 2026 (https://www.citinewsroom.com/2026/01/an-unanchored-institution-assessing-the-constitutionality-of-the-national-security-council-secretariat-of-ghana/), she laid bare a critical vulnerability at the very heart of Ghana’s national security architecture. Her thesis was clear, persuasive, and grounded in strict constitutional interpretation: while the National Security Council Secretariat (NSCS) had expanded into a powerful operational force, it remained an "unanchored institution", lacking explicit statutory creation or constitutional authorisation under both the 1992 Constitution and the Security and Intelligence Agencies Act, 2020 (Act 1030).

Ampong’s critique was not merely academic; it was an urgent warning to lawmakers and policy framers about the dangers of running security operations through executive convention rather than statutory mandate.

When Parliament subsequently took up the legislative mantle to pass the new Security and Intelligence Agencies Act, 2026 (Act 1168), which received presidential assent on March 31, 2026, the legal and security community reasonably expected lawmakers to address this glaring anomaly. It presented the ideal statutory window to cure the omission: either by formally establishing the Secretariat with explicit operational boundaries or by restricting the coordinator’s office strictly to administrative coordination.

Regrettably, the framers of Act 1168 failed to pay attention to these well-founded critiques. Instead of correcting the legislative oversights of Act 1030, Parliament repeated the same mistake.

The Statutory Reality of Act 1168: Silence at the Apex

An exhaustive legal review of Act 1168 reveals a striking statutory omission: the Act is completely silent on the "National Security Council Secretariat."

In fact, the word "Secretariat" does not appear anywhere within the 47 sections or the schedule of Act 1168. Rather than resolving the ambiguity, the new law simply replicates the structural flaws of its predecessor:

1. No Institutional Establishment: Act 1168 creates the Office of the National Security Co-ordinator (Sections 12–15), but it nowhere establishes a legal entity, directorate, or agency styled as the "National Security Council Secretariat."
2. Explicit Restriction of Operational Intelligence Agencies: Section 16 of Act 1168 strictly limits recognised operational intelligence bodies in Ghana to two entities:
   • The Bureau of National Intelligence (BNI) (internal intelligence agency; renamed from the NIB under Section 16(a) and Section 46(1)).
   • The Research Department (external intelligence agency).
3. Misalignment of Secretarial Functions: Under Section 2 of Act 1168, the law explicitly designates the Secretary to Cabinet as the Secretary to the National Security Council, not the National Security Coordinator, nor any head of a central security secretariat.
4. Coordinative, Not Operational Mandate: Section 14 tasks the coordinator strictly with administrative, advisory, and inter-agency functions, collating, evaluating, and facilitating information sharing among statutory agencies. It provides no legal foundation for a central secretariat to execute direct intelligence operations, conduct enforcement actions, or issue operational commands over other security agencies.

A Repeated Legislative Blindspot
The repeal of Act 1030 under Section 45 offered a fresh slate for legislative reform. By ignoring the published warnings and expert analyses regarding the NSCS's questionable legal grounding, the framers of Act 1168 demonstrated a troubling indifference to structural and constitutional fidelity.

By failing to define or recognise the NSCS in Act 1168, the state leaves the nation’s top security structure in a perilous legal limbo:

• Executive Convention vs. Rule of Law: The NSCS continues to function as an operational powerhouse based purely on administrative habit and executive practice rather than a clear legislative charter.
• Risk of Operational Overreach and Friction: Without statutory boundaries prohibiting the NSCS from conducting independent field operations, friction with constitutionally mandated bodies like the BNI, Police, and Armed Forces will inevitably persist.
• Lack of Democratic Accountability: Security institutions derive their lawful authority, including powers that may touch on citizens' rights, from statutory enactments passed by Parliament. Operating an operational secretariat outside explicit statutory boundaries undermines legislative oversight and rule-of-law principles.

Conclusion: Curing the Institutional Anomaly

Akua Serwaa Ampong’s earlier assessment was entirely apt: an unanchored institution poses serious risks to institutional coherence and constitutional governance.

Act 1168 was Ghana’s chance to bring institutional practice into harmony with the law. By turning a blind eye to this structural flaw, lawmakers have missed a vital opportunity to fortify the apex of our intelligence apparatus. As security challenges in the sub-region grow increasingly complex, Ghana cannot afford a national security hierarchy built on statutory silence and legal ambiguity. Parliament must, as a matter of urgency, revisit the architecture of Act 1168 to either formally define and restrict the Secretariat’s bounds or align operational reality with statutory command.